Split Over Historic Ash

Developer Kevin Smart to be cited for digging in violation of easement.

A citation and fine of $1,000 is pending against real estate developer Kevin Smart and his company Premiere Homes after Maryland National Capital Park and Planning Commission officials determined that digging in the root zone of a large, historic white ash on one of Smart’s properties violated a standing easement there.

Arborists say that the 61-inch diameter ash may be more than 240 years old. It stands only feet away from a more than 100-year-old house on a small section of Circle Drive near Glen Mill Road that is not maintained by Montgomery County.

Controversy over the historic tree began earlier this summer when Smart, who owns the property at 12925 Circle Drive, where the tree is located, and lives on the same block, asked the house’s tenant, Cindy Fain, to leave.

Fain’s lease had expired and she was renting the white house on a month-to-month basis, so she had no choice but to go. But when Fain pleaded Smart to let her stay, Smart referred to plans to redevelop the property that included tearing down the existing house and cutting down the tree in order to build a new house on the site.

“No one was supposed to find out about this. This was not publicized. This happened all because I was calling Mr. Smart to the 11th hour begging to stay there,” said Fain, who lived in the house from October, 2004-July, 2005. “I kind of blew the lid off it.”

IN 1998, Smart subdivided the white house's large lot and added a second house closer to Circle Drive. As part of Park and Planning’s development review, Smart agreed to a forest conservation plan that included a category II conservation easement over the tree. The easement prevents excavation, grading, cutting or new construction that would affect the tree without approval from Park and Planning and stands “in perpetuity … running with the title of the land.”

But digging in the tree's critical root zone, apparently around the house's septic tank, did take place earlier this month prompting a site visit from Park and Planning Environmental Planner Candy Bunnag and inspector Marco Fuster.

Bunnag said that such digging required prior approval from Park and Planning under the terms of the category II easement, prompting the fine and a meeting with the developer next week.

Bunnag also requested a letter from Premiere Homes committing to halt activity at the site.

The letter, from director of field operations Steven Alexander and dated Aug. 11 said that the builder "will cease all activity" until Park and Planning makes a decision on the white ash.

"No construction activity has taken place within the … critical root area of the tree. We have removed the failed septic tank," the letter read.

“The letter is kind of humorously filled with inaccuracies,” Fain said. “First of all they didn’t remove a septic tank and second of all it wasn’t failed. This happened within days of me moving out — the septic was fine.”

IN DECEMBER, 2004, Smart filed plans with Park and Planning that called for protecting the tree, but a filing in July reversed that plan, citing septic issues that would cause irreparable damage to the tree if a new house is constructed.

Smart's request to lift the easement is slated to go before the Planning Board Sept. 29.

Environmentalists and neighbors are furious, saying that the fact that proposed construction would damage the tree is no reason to lift an easement that prohibits such construction.

Bunnag said that as far as she knows, the situation is unprecedented.

“This may be the first one that has gone back to the Planning Board, so I’m not sure of what the criteria of what the board has to determine or use to make a decision,” she said. “There’s still a lot of questions.”

She said that she has talked to the Department of Permitting Service about the possibility of locating the septic field further away from the tree.

Fain said that the best plan would be to preserve the current house and the tree.

“Mr. Smart could have made a very good profit … doing just a basic renovation. It’s all the house needed. It was so charming, adorable,” she said. “In my opinion, I’d rather have that than the $2 million house. I would sell a $2 million house to go find something like that.”